Zarko Meskovic, respondent, v. Franklin Walman, et al., defendants, Vaton Pacuku, et al., appellants.

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Supreme Court, Appellate Division, Second Department, New York.

Zarko Meskovic, respondent, v. Franklin Walman, et al., defendants, Vaton Pacuku, et al., appellants.

2013–08762 (Index No. 100399/12)

Decided: April 30, 2014

REINALDO E. RIVERA, J.P. THOMAS A. DICKERSON JEFFREY A. COHEN SYLVIA O. HINDS–RADIX JOSEPH J. MALTESE, JJ. DeSena & Sweeney, LLP, Bohemia, N.Y. (Shawn P. O'Shaughnessy of counsel), for appellants. Krentsel & Guzman, LLP (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for respondent.

Submitted—April 2, 2014

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Vaton Pacuku and Victory Construction Consultants, Inc., appeal from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated May 30, 2013, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) at a result of the subject accident.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The appellants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345;  Gaddy v. Eyler, 79 N.Y.2d 955, 956–957).   The papers submitted by the appellants failed to adequately address the plaintiff's claim, set forth in the bill of particulars, that he sustained serious injuries to the cervical and lumbar regions of his spine (cf.  Staff v. Yshua, 59 AD3d 614).

Since the appellants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v. Kossoff, 90 AD3d 969).   Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

RIVERA, J.P., DICKERSON, COHEN, HINDS–RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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